Weighing the Death Penalty vs. Life Without Parole

When it comes to executing, the United States is a top world contender. Last year, the U.S. lagged behind only China, Iran, North Korea, and Yemen in the volume of citizens it killed. But it's getting harder and harder to execute prisoners in the United States.

In 1994, 328 people were sentenced to death in America; in 2008, only 111 received the sentence. And many who are sentenced to death will never see the death chamber: Since 1978, the state of California has only successfully executed 13 people. Today, 714 remain on death row. Now, an inmate sentenced to death in the state is more likely to expire from illness or old age than to actually be killed by the government.

As the U.S. grows more ambivalent about the death penalty, execution has evolved into a highly expensive and time-consuming form of punishment. Today, the criminal justice system must navigate lengthy trials, heightened judicial review, and expensive appeals processes for every capital offense; the longer death row inmates remain in that legal limbo, the more expensive they become.

A new California senate bill hopes to simplify the equation: End the death penalty in California in favor of life in prison without the possibility of parole. Supporters of the bill say the death penalty is too expensive (it costs the state an extra $1 billion every five years) and error-prone (the U.S. has exonerated 138 death row inmates to date) to maintain. But the downgrade to the next harshest penalty isn't that simple.

For one: Some supporters of the bill see execution as too soft a punishment. "Some of us believe that the death penalty is too kind on the killers of their loved ones," Judy Kerr, a victim outreach coordinator for California Crime Victims for Alternatives to the Death Penalty, tells me. Life without parole, a sentence that ensures an offender will "never see the outside of a prison cell" again, "effectively does replace death," says Kerr, who began speaking out against the death penalty—and in favor of life without parole—after her brother was murdered in 2003 (the case remains unsolved). The abbreviated appeals process in non-capital cases would also ensure "the joy and the blessing of swift and certain justice" for victims, Kerr says.

For a state weighed down by a massive budget crisis, $2 billion a decade is nothing to sneeze at. But Kerr's remarks raises questions about the nature of crime and punishment in the United States that can't be neatly resolved on a state budget ledger. In a justice system that aims to satisfy a whole host of ends—simultaneously punishing and rehabilitating criminals; protecting the public from offenders old and new; ensuring justice for both victims and the accused—where does life without parole fit?

Life without parole is called "civil death" for a reason—the sentence raises many of the same issues that the death penalty does. It totally abandons any pretense of rehabilitating criminals for reintroduction to society. Keeping inmates in prison until they die is expensive, too—and that's particularly true in California, where the Supreme Court recently deemed its prisons overcrowded by 300,000 people. And like the death penalty, life without parole convictions are riddled with racial disparities: 56.4 percent of inmates serving life without parole are black.

Internationally, the U.S. criminal justice system has cultivated a backwards reputation for continuing to execute its own citizens, and life without parole may someday occupy a similar position abroad. Countries like Bolivia, Mexico, Spain, and Venezuela don't impose life sentences on their citizens. Even China and Pakistan give their lifers the possibility of parole after 25 years. Europe is weighing banning life in prison without parole across the continent. And today, the United States is the only country in the world where inmates are actually serving life without parole for crimes they committed as juveniles.

But because execution is an irreversible punishment, death row convictions in the U.S. are considered with greater care. So as U.S. executions have declined, the proportion of inmates serving life without parole sentences has grown. Today, 1 in 11 prisoners is serving a life sentence, and one-third of those inmates will never be eligible for parole. Over the past 20 years, the number of inmates serving life without parole has tripled. In many jurisdictions, life without parole convictions are just easier to cinch. "Many precautions are taken in death-eligible cases because of the gravity and permanency of this punishment, and yet even with these in place the death penalty has been clearly documented to be plagued with deficiencies," Ashley Nellis wrote [PDF] in the Federal Sentencing Reporter last year. "It is worrisome that the same precautions are not taken in cases that could result in a parole-ineligible life sentence, what some call a living death sentence."

Attitudes in the U.S. are shifting slowly: Just last year, the Supreme Court outlawed life without parole sentences for juveniles facing non-homicide charges. That development sparked Michael M. O'Hear, editor of the Federal Sentencing Reporter, to consider [PDF] "the beginning of the end for life without parole" in America. "If it is cruel to deny hope to juvenile offenders, it is not clear that it is any less cruel to deny hope to similarly situated adult offenders," O'Hear writes.

But the cruelty scale isn't exactly finely-tuned. "Life goes on for [life without parole] inmates," O'Hear continues. "They adapt to prison. They are able to acquire privileges through good behavior. They enjoy recreational opportunities, a social life, and family visits. They receive food, shelter, and medical care at state expense," he says. "By contrast, research on life after even relatively short stays in prison suggests that ex-inmates typically face extraordinary, long-term challenges to reintegration and a return to the level of well-being they enjoyed before prison."

What's worse: Death? Life in prison? Life after prison? Here's to hoping our justice system eyes all of its punishments with another question in mind: What will really make criminals better, and keep people safe?